Citation Nr: 0723537
Decision Date: 07/30/07 Archive Date: 08/14/07
DOCKET NO. 96-49 136 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
Tzu Wang, Associate Counsel
INTRODUCTION
The veteran had active service from September 13, 1976 to
December 2, 1976.
Initially, this matter came before the Board of Veterans'
Appeals (Board) from an August 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico, which denied
service connection for a low back disorder.
The Board notes that in an August 1997 VA Form 21-4138, the
veteran withdrew his original May 1997 request for an appeals
hearing at the RO. There is no further indication that the
veteran or his representative have requested that the hearing
be rescheduled, thus, the Board deems the veteran's request
for a hearing withdrawn. 38 C.F.R. §§ 20.700-20.704 (2006).
In April 1998, the Board reopened the veteran's claim for
service connection for a low back disorder and remanded the
claim to the RO for additional development in September 2003
and August 2004. The case is now before the Board for
further appellate review.
FINDING OF FACT
There is competent medical evidence linking the veteran's low
back disorder to military service.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran's favor, a low
back disorder was incurred in active service. 38 U.S.C.A.
§§ 1131, 5103, 5103A, 5107 (West 2002
& Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103,
5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159.
During the pendency of this appeal, the U.S. Court of Appeals
for Veterans Claims (Court) issued a decision in the
consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473
(2006), which held that the notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service-connection claim, including the
degree of disability and the effective date of an award. In
a May 2006 letter, the appellant was provided with notice of
the type of evidence necessary to establish a disability
rating or an effective date, if service connection was
granted on appeal. When implementing the award, the RO will
address any notice defect with respect to the disability
rating and effective date elements. Significantly, the
veteran retains the right to appeal any effective date or
initial disability rating assigned by the RO.
Without deciding whether VA's notice and development
requirements have been satisfied in the present case with
respect to the issue of a low back disorder the Board is
taking action favorable regarding the veteran's claim by
granting service connection for a low back disorder, as such
the Board finds that there has been no prejudice to the
veteran that would warrant further notice or development and
the Board will proceed with appellate review. See, e.g.,
VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992); See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sutton v. Brown, 9
Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384
(1993).
Analysis
The veteran contends that his low back disorder was incurred
in active military service.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. See 38 U.S.C.A. §§ 1131 (West 2002);
38 C.F.R. §§ 3.1(k), 3.303(a) (2006). In order to prevail in
a claim for service connection there must be medical evidence
of a current disability as established by a medical
diagnosis; of incurrence or aggravation of a disease or
injury in service, established by lay or medical evidence;
and of a nexus between the in-service injury or disease and
the current disability established by medical evidence.
Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
Where a veteran who served for ninety days or more during a
period of war develops certain chronic diseases, such as
arthritis, to a degree of 10 percent or more within one year
from separation from service, such diseases may be presumed
to have been incurred in service even though there is no
evidence of such disease during the period of service. This
presumption is rebuttable by affirmative evidence to the
contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
2002 & Supp. 2006); 38 C.F.R. §§ 3.307, 3.309 (2006).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2006). Further,
if a condition noted during service is not shown to be
chronic, then generally, a showing of continuity of symptoms
after service is required for service connection. See
38 C.F.R. § 3.303(b) (2006).
Service medical records show that the veteran's back was
normal upon enlistment in August 1976. On September 21,
1976, the veteran reported to have fallen down a stairway.
He had no history of back problems and was diagnosed with
muscle strain to his back. In November 1976, a Medical Board
convened to consider the physical condition of the veteran.
The Medical Board understood the veteran to have a reported
history of low back pain and recommended him for discharge
due to a pre-existing condition.
Post-service medical records include VA examination reports,
VA outpatient treatment records, Social Security
Administration (SSA) records, and a private medical opinion.
As an initial matter, the Board notes that, since his
enlistment and pre-training examination reports show that his
back was normal upon enlistment, the veteran enjoys the
presumption of soundness upon entry, unless the government
can prove by clear and unmistakable evidence that (1) the
veteran's disability existed prior to service and (2) that
the preexisting disability was not aggravated during service.
See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004);
VAOPGCPREC 3-2003 (July 16, 2003).
The November 1976 Medical Board findings may satisfy the
first prong of Wagner, supra. However, the government has
not provided clear and unmistakable evidence that the pre-
existing disorder was not aggravated during service. An
October 1998 VA examination report shows that the VA examiner
opined that the veteran's back condition was congenital in
nature and, therefore, pre-existed service. However, a July
2004 letter from the veteran's private physician and the most
recent VA medical opinions rendered in June and September
2006 are in agreement that the veteran's back condition is
not congenital and is likely related to service. None of the
VA examination reports addressed the issue of aggravation.
As such, the evidence is in equipoise and does not
demonstrate clearly and unmistakably that the veteran's
condition was not aggravated by his service.
Thus, since the second prong of Wagner, supra, has not been
met by the government, the Board finds that the veteran
enjoys the presumption of soundness upon entry and his claim
is one for incurrence in service.
As discussed above, the veteran underwent a VA spine
examination in October 1998, where he reported some post-
service injuries. X-rays studies were conducted and the
veteran was diagnosed with spondylolysis of left L5 and mild
degenerative disc disease of the lumbar spine. After
consideration of the evidence, the VA examiner opined that
the veteran's back condition was pre-existing and congenital.
The VA examiner did not relate the veteran's back conditions
to his reported post-service injuries.
In support of his claim, the veteran submitted a letter, in
July 2003, stating that the Service Medical Board may have
misunderstood his answer with regard to having a past history
of lower back pain. In July 2004, A. Perez, M.D., submitted
a letter relating the veteran's back condition to his
military service injury in 1976. Dr. Perez reviewed the
veteran's service medical records and pointed out that, upon
initial treatment for his service injury, in September 1976,
the veteran reported that he did not have a history of back
pain.
Pursuant to a Board remand, the veteran underwent another VA
spine examination in June 2006. His claims file was reviewed
by the VA examiner. After studying the veteran's magnetic
resonance imaging (MRI) results, the VA examiner diagnosed
the veteran with lumbosacral strain, myositis, and left-sided
L5-S1 radiculopaty. The VA examiner then opined that theses
back disorders are at least as likely as not related to the
veteran's military service, in particular his documented
injury/fall. The VA examiner went on to opine that the
veteran's current lumbosacral spine disorders are not related
to any of his post-service injuries. Further, these
conditions are usually not congenital, but traumatic in
origin.
After a full review of the record and resolving all
reasonable doubt in favor of the veteran, the Board concludes
that service connection for a low back disorder is
established. The veteran's contentions are corroborated by
his service medical records. Further, the available medical
evidence sufficiently documented the veteran's symptoms of a
low back disorder since his military service to link his
current diagnosis of a low back disorder to such service.
See 38 C.F.R. § 3.303(b). When, after careful consideration
of all procurable and assembled data, a reasonable doubt
arises regarding service origin such doubt may be resolved in
favor of the claimant. By reasonable doubt is meant one
which exists because of an approximate balance of positive
and negative evidence which does not satisfactorily prove or
disprove the claim. 38 C.F.R. § 3.102. Thus, the veteran's
claim for service connection for a low back disorder is
granted.
ORDER
Service connection for a low back disorder is granted.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs